These two memorandums from the Justice
Department, both written by John C. Yoo, a University of
California law professor who was serving in the department,
provided arguments to keep United States officials from being
charged with war crimes for the way prisoners were detained and
interrogated. The memorandums, principally the one written on
January 9, provided legal arguments to support Bush
administration officials' assertions that the Geneva
Conventions did not apply to detainees from the war in
Afghanistan.

White House Counsel Alberto R.
Gonzales, in a memorandum to President Bush, said that the
Justice Department's advice in the January 9 memorandum was
sound and that Mr. Bush should declare the Taliban and Al Qaeda
outside the coverage of the Geneva Conventions. That would keep
American officials from being exposed to the federal War Crimes
Act, a 1996 law that carries the death penalty.

A memorandum from William H. Taft, IV,
the State Department's legal adviser, to Mr. Gonzales warned
that the broad rejection of the Geneva Conventions posed
several problems. "A decision that the conventions do not apply
to the conflict in Afghanistan in which our armed forces are
engaged deprives our troops there of any claim to the
protection of the conventions in the event they are captured."
An attachment to this memorandum, written by a State Department
lawyer, showed that most of the administration's senior lawyers
agreed that the Geneva Conventions were inapplicable. The
attachment noted that C.I.A. lawyers asked for an explicit
understanding that the administration's public pledge to abide
by the spirit of the conventions did not apply to its
operatives.

This memorandum provided a
justification for using torture to extract information from al
Qaeda operatives. It provides very narrow definitions of
torture that were devised to allow interrogators to evade being
charged with that offense. The legal defintions in this memo
allowed President Bush to claim that the United States "does
not conduct torture," and "follows the law because we are a
nation of laws."

This report, prepared by a Defense
Department legal task force, drew on the January 2002 and
August 2002 memos to declare that President Bush was not bound
by either an international treaty prohibiting torture or by a
federal anti-torture law, because he had the authority as
commander in chief to approve any technique needed to protect
the nation's security. This report also said that executive
branch officials, including those in the military, could be
immune from domestic and international prohibitions against
torture for a variety of reasons, including a belief by
interrogators that they were acting on orders from superiors
"except where the conduct goes so far as to be patently
unlawful."

A memorandum from Secretary of Defense
Donald H. Rumsfeld to Gen. James T. Hill outlines 24 permitted
interrogation techniques, 4 of which were considered stressful
enough to require Mr. Rumsfeld's explicit approval. Defense
Department officials say it did not refer to the legal analysis
of the month before.

NEWS REPORTS:

Double Standards?

A Justice Department memo proposes that the
United States hold others accountable for international laws on
detainees--but that Washington did not have to follow them
itself

(Photo) An interrogation room at Guantanamo
Bay. The Bush administration has said that detainees questioned
there are not protected by the Geneva Conventions.

In a crucial memo written four months after the
September 11, 2001, terror attacks, Justice Department lawyers
advised that President George W. Bush and the U.S. military did
not have to comply with any international laws in the handling of
detainees in the war on terrorism. It was that conclusion, say
some critics, that laid the groundwork for aggressive
interrogation techniques that led to the abuses at the Abu Ghraib
prison in Iraq.

The draft memo, which drew sharp protest from
the State Department, argued that the Geneva Conventions on the
treatment of prisoners of war did not apply to any Taliban or Al
Qaeda fighters being flown to the detention center at Guantanamo
Bay, Cuba, because Afghanistan was a "failed state" whose militia
did not have any status under international treaties.

But the Jan. 9, 2002 memo, written by Justice
lawyers John Yoo and Robert J. Delahunty, went far beyond that
conclusion, explicitly arguing that no international
laws&emdash;including the normally observed laws of
war&emdash;applied to the United States at all because they did
not have any status under federal law.

"As a result, any customary international law
of armed conflict in no way binds, as a legal matter, the
President or the U.S. Armed Forces concerning the detention or
trial of members of Al Qaeda and the Taliban," according to a copy
of the memo obtained by NEWSWEEK. A copy of the memo
is being posted today on NEWSWEEK's Web site.

At the same time, and even more striking,
according to critics, the memo explicitly proposed a de facto
double standard in the war on terror in which the United States
would hold others accountable for international laws it said it
was not itself obligated to follow.

After concluding that the laws of war did not
apply to the conduct of the U.S. military, the memo argued that
President Bush could still put Al Qaeda and Taliban fighters on
trial as war criminals for violating those same laws. While
acknowledging that this may seem "at first glance,
counter-intuitive," the memo states this is a product of the
president's constitutional authority "to prosecute the war
effectively."

The two lawyers who drafted the memo, entitled
"Application of Treaties and Laws to Al Qaeda and Taliban
Detainees," were key members of the Justice Department's Office of
Legal Counsel, a unit that provides legal advice to the White
House and other executive-branch agencies. The lead author, John
Yoo, a conservative law professor and expert on international law
who was at the time deputy assistant attorney general in the
office, also crafted a series of related memos&emdash;including
one putting a highly restrictive interpretation on an
international torture convention&emdash;that became the legal
framework for many of the Bush administration's post-9/11
policies. Yoo also coauthored another OLC memo entitled "Possible
Habeas Jurisdiction Over Aliens Held in Guantanamo Bay, Cuba,"
that concluded that U.S. courts could not review the treatment of
prisoners at the base.

Critics say the memos' disregard for the United
States' treaty obligations and international law paved the way for
the Pentagon to use increasingly aggressive interrogation
techniques at Guantanamo Bay&emdash;including sleep deprivation,
use of forced stress positions and environmental
manipulation&emdash;that eventually were applied to detainees at
the Abu Ghraib prison in Iraq. The customary laws of war, as
articulated in multiple international treaties and conventions
dating back centuries, also prohibit a wide range of conduct such
as attacks on civilians or the murder of captured
prisoners.

Kenneth Roth, the executive director of Human
Rights Watch, who has examined the memo, described it as a
"maliciously ideological or deceptive" document that simply
ignored U.S. obligations under multiple international agreements.
"You can't pick or choose what laws you're going to follow," said
Roth. "These political lawyers set the nation on a course that
permitted the abusive interrogation techniques" that have been
recently disclosed.

When you read the memo, "the first thing that
comes to mind is that this is not a lofty statement of policy on
behalf of the United States," said Scott Horton, president of the
International League for Human Rights, in an interview scheduled
to be aired tonight on PBS's "Now with Bill Moyers" show. "You get
the impression very quickly that it is some very clever criminal
defense lawyers trying to figure out how to weave and bob around
the law and avoid its applications."

At the time it was written, the memo also
prompted a strong rebuttal from the State Department's Legal
Advisor's office headed by William Howard Taft IV. In its own Jan.
11, 2002, response to the Justice draft, Taft's office warned that
any presidential actions that violated international law would
"constitute a breach of an international legal obligation of the
United States" and "subject the United States to adverse
international consequences in political and legal fora and
potentially in the domestic courts of foreign
countries."

"The United States has long accepted that
customary international law imposes binding obligations as a
matter of international law," reads the State Department
memo, which was also obtained by NEWSWEEK. "In domestic as well as
international fora, we often invoke customary international law in
articulating the rights and obligations of States, including the
United States. We frequently appeal to customary international
law." The memo then cites numerous examples, ranging from the U.S.
Army Field Manual on the Law of Land Warfare ("The unwritten or
customary law of war is binding upon all nations," it reads) to
U.S. positions in international issues such as the Law of the
Sea.

But the memo also singled out the potential
problems the Justice Department position would have for the
military tribunals that President Bush had recently authorized to
try Al Qaeda members and suspected terrorists. Noting that White
House counsel Alberto Gonzales had publicly declared that the
persons tried in such commissions would be charged with "offenses
against the international laws of war," the State Department
argued that the Justice position would undercut the basis for the
trials.

"We are concerned that arguments by the United
States to the effect that customary international law is not
binding will be used by defendants before military commissions (or
in proceedings in federal court) to argue that the commissions
cannot properly try them for crimes under international law," the
State memo reads. "Although we can imagine distinctions that might
be offered, our attempts to gain convictions before military
commissions may be undermined by arguments which call into
question the very corpus of law under which offenses are
prosecuted."

The Yoo-Delahunty memo was addressed to William
J. Haynes, then general counsel to the Defense Department. But
administration officials say it was the primary basis for a Jan.
25, 2002, memo by White House counsel Gonzales&emdash;which has
also been posted on NEWSWEEK's Web site&emdash;that urged the
president to stick to his decision not to apply prisoner-of-war
status under the Geneva Conventions to captured Al Qaeda or
Taliban fighters. The president's decision not to apply such
status to the detainees was announced the following month, but the
White House never publicly referred to the Justice conclusion that
no international laws&emdash;including the usual laws of
war&emdash;applied to the conflict.

One international legal scholar, Peter Spiro of
Hofstra University, said that the conclusions in the memo related
to international law "may be defensible" because most
international laws are not binding in U.S. courts. But Spiro said
that "technical" and "legalistic" argument does not change the
effect that the United States still has obligations in
international courts and under international treaties. "The United
States is still bound by customary international law," he
said.

One former official involved in formulating
Bush administration policy on the detainees acknowledged that
there was a double standard built into the Justice Department
position, which the official said was embraced, if not publicly
endorsed, by the White House counsel's office. The essence of the
argument was, the official said, "it applies to them, but it
doesn't apply to us."

But the official said this was an eminently
defensible position because there were many categories of
international law, some of which clearly could not be interpreted
to be binding on the president. In any case, the general
administration position of not applying any international
standards to the treatment of detainees was driven by the
paramount needs of preventing another terrorist attack. "The
Department of Justice, the Department of Defense and the CIA were
all in alignment that we had to have the flexibility to handle the
detainees&emdash;and yes, interrogate them&emdash;in ways that
would be effective," the official said.

Memo offered justification for use of
torture

Justice Department gave advice in
2002

In August 2002, the Justice Department advised
the White House that torturing al Qaeda terrorists in captivity
abroad "may be justified," and that international laws against
torture "may be unconstitutional if applied to interrogations"
conducted in President Bush's war on terrorism, according to a
newly obtained memo.

If a government employee were to torture a
suspect in captivity, "he would be doing so in order to prevent
further attacks on the United States by the Al Qaeda terrorist
network," said the memo, from the Justice Department's office of
legal counsel, written in response to a CIA request for legal
guidance. It added that arguments centering on "necessity and
self-defense could provide justifications that would eliminate any
criminal liability" later.

The memo seems to counter the pre-Sept. 11,
2001, assumption that U.S. government personnel would never be
permitted to torture captives. It was offered after the CIA began
detaining and interrogating suspected al Qaeda leaders in
Afghanistan and elsewhere in the wake of the attacks, according to
government officials familiar with the document.

The legal reasoning in the 2002 memo, which
covered treatment of al Qaeda detainees in CIA custody, was later
used in a March 2003 report by Pentagon lawyers assessing
interrogation rules governing the Defense Department's detention
center at Guantanamo Bay, Cuba. At that time, Defense Secretary
Donald H. Rumsfeld had asked the lawyers to examine the
logistical, policy and legal issues associated with interrogation
techniques.

Bush administration officials say flatly that,
despite the discussion of legal issues in the two memos, it has
abided by international conventions barring torture, and that
detainees at Guantanamo and elsewhere have been treated humanely,
except in the cases of abuse at Abu Ghraib prison in Iraq for
which seven military police soldiers have been charged.

Still, the 2002 and 2003 memos reflect the Bush
administration's desire to explore the limits on how far it could
legally go in aggressively interrogating foreigners suspected of
terrorism or of having information that could thwart future
attacks.

In the 2002 memo, written for the CIA and
addressed to White House Counsel Alberto R. Gonzales, the Justice
Department defined torture in a much narrower way, for example,
than does the U.S. Army, which has historically carried out most
wartime interrogations.

Avoiding legal accountability

In the Justice Department's view -- contained
in a 50-page document signed by Assistant Attorney General Jay S.
Bybee and obtained by The Washington Post -- inflicting moderate
or fleeting pain does not necessarily constitute torture. Torture,
the memo says, "must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death."

By contrast, the Army's Field Manual 34-52,
titled "Intelligence Interrogations," sets more restrictive rules.
For example, the Army prohibits pain induced by chemicals or
bondage; forcing an individual to stand, sit or kneel in abnormal
positions for prolonged periods of time; and food deprivation.
Under mental torture, the Army prohibits mock executions, sleep
deprivation and chemically induced psychosis.

"It is by leaps and bounds the worst thing I've
seen since this whole Abu Ghraib scandal broke," said Tom
Malinowski of Human Rights Watch. "It appears that what they were
contemplating was the commission of war crimes and looking for
ways to avoid legal accountability. The effect is to throw out
years of military doctrine and standards on
interrogations."

But a spokesman for the White House counsel's
office said, "The president directed the military to treat al
Qaeda and Taliban humanely and consistent with the Geneva
Conventions."

Mark Corallo, the Justice Department's chief
spokesman, said "the department does not comment on specific legal
advice it has provided confidentially within the executive
branch." But he added: "It is the policy of the United States to
comply with all U.S. laws in the treatment of detainees --
including the Constitution, federal statutes and treaties." The
CIA declined to comment.

The Justice Department's interpretation for the
CIA sought to provide guidance on what sorts of aggressive
treatments might not fall within the legal definition of
torture.

The 2002 memo, for example, included the
interpretation that "it is difficult to take a specific act out of
context and conclude that the act in isolation would constitute
torture." The memo named seven techniques that courts have
considered torture, including severe beatings with truncheons and
clubs, threats of imminent death, burning with cigarettes,
electric shocks to genitalia, rape or sexual assault, and forcing
a prisoner to watch the torture of another person.

"While we cannot say with certainty that acts
falling short of these seven would not constitute torture," the
memo advised, ". . . we believe that interrogation techniques
would have to be similar to these in their extreme nature and in
the type of harm caused to violate law."

"For purely mental pain or suffering to amount
to torture," the memo said, "it must result in significant
psychological harm of significant duration, e.g., lasting for
months or even years." Examples include the development of mental
disorders, drug-induced dementia, "post traumatic stress disorder
which can last months or even years, or even chronic
depression."

Wartime authority

Of mental torture, however, an interrogator
could show he acted in good faith by "taking such steps as
surveying professional literature, consulting with experts or
reviewing evidence gained in past experience" to show he or she
did not intend to case severe mental pain and that the conduct,
therefore, "would not amount to the acts prohibited by the
statute."

In 2003, the Defense Department conducted its
own review of the limits that govern torture in consultation with
experts at the Justice Department and other agencies. The aim of
the March 6, 2003, review, conducted by a working group that
included representatives of the military services, the Joint
Chiefs of Staff and the intelligence community, was to provide a
legal basis for what the group's report called "exceptional
interrogations."

Much of the reasoning in the group's report and
in the Justice Department 2002 memo overlap. The documents, which
address treatment of al Qaeda and Taliban detainees, were not
written to apply to detainees held in Iraq.

In a draft of the working group's report, for
example, Pentagon lawyers approvingly cited the Justice
Department's 2002 position that domestic and international laws
prohibiting torture could be trumped by the president's wartime
authority and any directives he issued.

At the time, the Justice Department's legal
analysis, however, shocked some of the military lawyers who were
involved in crafting the new guidelines, said senior defense
officials and military lawyers.

"Every flag JAG lodged complaints," said one
senior Pentagon official involved in the process, referring to the
judge advocate generals who are military lawyers of each
service.

"It's really unprecedented. For almost 30 years
we've taught the Geneva Convention one way," said a senior
military attorney. "Once you start telling people it's okay to
break the law, there's no telling where they might
stop."

A U.S. law enacted in 1994 bars torture by U.S.
military personnel anywhere in the world. But the Pentagon group's
report, prepared under supervision of General Counsel William J.
Haynes II, said that "in order to respect the President's inherent
constitutional authority to manage a military campaign . . .
[the prohibition against torture] must be construed as
inapplicable to interrogations undertaken pursuant to his
Commander-in-Chief authority."

Defining torture

The Pentagon group's report, divulged Monday by
the Wall Street Journal and obtained by The Post, said further
that the 1994 law barring torture "does not apply to the conduct
of U.S. personnel" at Guantanamo Bay.

It also said the anti-torture law did apply to
U.S. military interrogations that occurred outside U.S. "maritime
and territorial jurisdiction," such as in Iraq or Afghanistan. But
it said both Congress and the Justice Department would have
difficulty enforcing the law if U.S. military personnel could be
shown to be acting as a result of presidential orders.

The report then parsed at length the definition
of torture under domestic and international law, with an eye
toward guiding military personnel about legal defenses.

The Pentagon report uses language very similar
to that in the 2002 Justice Department memo written in response to
the CIA's request: "If a government defendant were to harm an
enemy combatant during an interrogation in a manner that might
arguably violate criminal prohibition, he would be doing so in
order to prevent further attacks on the United States by the al
Qaeda terrorist network," the draft states. "In that case, DOJ
[Department of Justice] believes that he could argue that
the executive branch's constitutional authority to protect the
nation from attack justified his actions."

The draft goes on to assert that a soldier's
claim that he was following "superior orders" would be available
for those engaged in "exceptional interrogations except where the
conduct goes so far as to be patently unlawful." It asserts, as
does the Justice view expressed for the CIA, that the mere
infliction of pain and suffering is not unlawful; the pain or
suffering must be severe.

A Defense Department spokesman said last night
that the March 2003 memo represented "a scholarly effort to define
the perimeters of the law" but added: "What is legal and what is
put into practice is a different story." Pentagon officials said
the group examined at least 35 interrogation techniques, and
Rumsfeld later approved using 24 of them in a classified directive
on April 16, 2003, that governed all activities at Guantanamo Bay.
The Pentagon has refused to make public the 24 interrogation
procedures.

Staff writer Josh White contributed to this
report.

Memo Offered Justification for Use of
Torture

Justice Dept. Gave Advice in 2002

In August 2002, the Justice Department advised
the White House that torturing al Qaeda terrorists in captivity
abroad "may be justified," and that international laws against
torture "may be unconstitutional if applied to interrogations"
conducted in President Bush's war on terrorism, according to a
newly obtained memo.

If a government employee were to torture a
suspect in captivity, "he would be doing so in order to prevent
further attacks on the United States by the Al Qaeda terrorist
network," said the memo, from the Justice Department's office of
legal counsel, written in response to a CIA request for legal
guidance. It added that arguments centering on "necessity and
self-defense could provide justifications that would eliminate any
criminal liability" later.

The memo seems to counter the pre-Sept. 11,
2001, assumption that U.S. government personnel would never be
permitted to torture captives. It was offered after the CIA began
detaining and interrogating suspected al Qaeda leaders in
Afghanistan and elsewhere in the wake of the attacks, according to
government officials familiar with the document.

The legal reasoning in the 2002 memo, which
covered treatment of al Qaeda detainees in CIA custody, was later
used in a March 2003 report by Pentagon lawyers assessing
interrogation rules governing the Defense Department's detention
center at Guantanamo Bay, Cuba. At that time, Defense Secretary
Donald H. Rumsfeld had asked the lawyers to examine the
logistical, policy and legal issues associated with interrogation
techniques.

Bush administration officials say flatly that,
despite the discussion of legal issues in the two memos, it has
abided by international conventions barring torture, and that
detainees at Guantanamo and elsewhere have been treated humanely,
except in the cases of abuse at Abu Ghraib prison in Iraq for
which seven military police soldiers have been charged.

Still, the 2002 and 2003 memos reflect the Bush
administration's desire to explore the limits on how far it could
legally go in aggressively interrogating foreigners suspected of
terrorism or of having information that could thwart future
attacks.

In the 2002 memo, written for the CIA and
addressed to White House Counsel Alberto R. Gonzales, the Justice
Department defined torture in a much narrower way, for example,
than does the U.S. Army, which has historically carried out most
wartime interrogations.

In the Justice Department's view -- contained
in a 50-page document signed by Assistant Attorney General Jay S.
Bybee and obtained by The Washington Post -- inflicting moderate
or fleeting pain does not necessarily constitute torture. Torture,
the memo says, "must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death."

By contrast, the Army's Field Manual 34-52,
titled "Intelligence Interrogations," sets more restrictive rules.
For example, the Army prohibits pain induced by chemicals or
bondage; forcing an individual to stand, sit or kneel in abnormal
positions for prolonged periods of time; and food deprivation.
Under mental torture, the Army prohibits mock executions, sleep
deprivation and chemically induced psychosis.

"It is by leaps and bounds the worst thing I've
seen since this whole Abu Ghraib scandal broke," said Tom
Malinowski of Human Rights Watch. "It appears that what they were
contemplating was the commission of war crimes and looking for
ways to avoid legal accountability. The effect is to throw out
years of military doctrine and standards on
interrogations."

But a spokesman for the White House counsel's
office said, "The president directed the military to treat al
Qaeda and Taliban humanely and consistent with the Geneva
Conventions."

Mark Corallo, the Justice Department's chief
spokesman, said "the department does not comment on specific legal
advice it has provided confidentially within the executive
branch." But he added: "It is the policy of the United States to
comply with all U.S. laws in the treatment of detainees --
including the Constitution, federal statutes and treaties." The
CIA declined to comment.

The Justice Department's interpretation for the
CIA sought to provide guidance on what sorts of aggressive
treatments might not fall within the legal definition of
torture.

The 2002 memo, for example, included the
interpretation that "it is difficult to take a specific act out of
context and conclude that the act in isolation would constitute
torture." The memo named seven techniques that courts have
considered torture, including severe beatings with truncheons and
clubs, threats of imminent death, burning with cigarettes,
electric shocks to genitalia, rape or sexual assault, and forcing
a prisoner to watch the torture of another person.

"While we cannot say with certainty that acts
falling short of these seven would not constitute torture," the
memo advised, ". . . we believe that interrogation techniques
would have to be similar to these in their extreme nature and in
the type of harm caused to violate law."

"For purely mental pain or suffering to amount
to torture," the memo said, "it must result in significant
psychological harm of significant duration, e.g., lasting for
months or even years." Examples include the development of mental
disorders, drug-induced dementia, "post traumatic stress disorder
which can last months or even years, or even chronic
depression."

Of mental torture, however, an interrogator
could show he acted in good faith by "taking such steps as
surveying professional literature, consulting with experts or
reviewing evidence gained in past experience" to show he or she
did not intend to cause severe mental pain and that the conduct,
therefore, "would not amount to the acts prohibited by the
statute."

In 2003, the Defense Department conducted its
own review of the limits that govern torture, in consultation with
experts at the Justice Department and other agencies. The aim of
the March 6, 2003, review, conducted by a working group that
included representatives of the military services, the Joint
Chiefs of Staff and the intelligence community, was to provide a
legal basis for what the group's report called "exceptional
interrogations."

Much of the reasoning in the group's report and
in the Justice Department's 2002 memo overlap. The documents,
which address treatment of al Qaeda and Taliban detainees, were
not written to apply to detainees held in Iraq.

In a draft of the working group's report, for
example, Pentagon lawyers approvingly cited the Justice
Department's 2002 position that domestic and international laws
prohibiting torture could be trumped by the president's wartime
authority and any directives he issued.

At the time, the Justice Department's legal
analysis, however, shocked some of the military lawyers who were
involved in crafting the new guidelines, said senior defense
officials and military lawyers.

"Every flag JAG lodged complaints," said one
senior Pentagon official involved in the process, referring to the
judge advocate generals who are military lawyers of each
service.

"It's really unprecedented. For almost 30 years
we've taught the Geneva Convention one way," said a senior
military attorney. "Once you start telling people it's okay to
break the law, there's no telling where they might
stop."

A U.S. law enacted in 1994 bars torture by U.S.
military personnel anywhere in the world. But the Pentagon group's
report, prepared under the supervision of General Counsel William
J. Haynes II, said that "in order to respect the President's
inherent constitutional authority to manage a military campaign .
. . [the prohibition against torture] must be construed as
inapplicable to interrogations undertaken pursuant to his
Commander-in-Chief authority."

The Pentagon group's report, divulged yesterday
by the Wall Street Journal and obtained by The Post, said further
that the 1994 law barring torture "does not apply to the conduct
of U.S. personnel" at Guantanamo Bay.

It also said the anti-torture law did apply to
U.S. military interrogations that occurred outside U.S. "maritime
and territorial jurisdiction," such as in Iraq or Afghanistan. But
it said both Congress and the Justice Department would have
difficulty enforcing the law if U.S. military personnel could be
shown to be acting as a result of presidential orders.

The report then parsed at length the definition
of torture under domestic and international law, with an eye
toward guiding military personnel about legal defenses.

The Pentagon report uses language very similar
to that in the 2002 Justice Department memo written in response to
the CIA's request: "If a government defendant were to harm an
enemy combatant during an interrogation in a manner that might
arguably violate criminal prohibition, he would be doing so in
order to prevent further attacks on the United States by the al
Qaeda terrorist network," the draft states. "In that case, DOJ
[Department of Justice] believes that he could argue that
the executive branch's constitutional authority to protect the
nation from attack justified his actions."

The draft goes on to assert that a soldier's
claim that he was following "superior orders" would be available
for those engaged in "exceptional interrogations except where the
conduct goes so far as to be patently unlawful." It asserts, as
does the Justice view expressed for the CIA, that the mere
infliction of pain and suffering is not unlawful; the pain or
suffering must be severe.

A Defense Department spokesman said last night
that the March 2003 memo represented "a scholarly effort to define
the perimeters of the law" but added: "What is legal and what is
put into practice is a different story." Pentagon officials said
the group examined at least 35 interrogation techniques, and
Rumsfeld later approved using 24 of them in a classified directive
on April 16, 2003, that governed all activities at Guantanamo Bay.
The Pentagon has refused to make public the 24 interrogation
procedures.

Staff writer Josh White contributed to this
report.

Justice memo approved torture of
al-Qaida

The document was later used in a Pentagon
report regarding Guantanamo Bay rules.

WASHINGTON - In August 2002, the Justice
Department advised the White House that torturing al-Qaida
terrorists in captivity abroad "may be justified," and that
international laws against torture "may be unconstitutional if
applied to interrogations" conducted in President Bush's war on
terrorism, according to a newly obtained memo.

If a government employee were to torture a
suspect in captivity, "he would be doing so in order to prevent
further attacks on the United States by the al-Qaida terrorist
network," said the memo, from the Justice Department's office of
legal counsel, written in response to a CIA request for legal
guidance. It added that arguments centering on "necessity and
self-defense could provide justifications that would eliminate any
criminal liability" later.

The legal reasoning in the 2002 memo, which
covered treatment of al-Qaida detainees in CIA custody, was later
used in a March 2003 report by Pentagon lawyers assessing
interrogation rules governing the Defense Department's detention
center at Guantanamo Bay, Cuba.

At that time, Defense Secretary Donald Rumsfeld
had asked the lawyers to examine the logistical, policy and legal
issues associated with interrogation techniques.

Bush administration officials say flatly that
it has abided by international conventions barring torture, and
that detainees at Guantanamo and elsewhere have been treated
humanely, except in the cases of abuse at Abu Ghraib prison in
Iraq for which seven military police soldiers have been
charged.

In the 2002 memo, written for the CIA and
addressed to White House Counsel Alberto Gonzales, the Justice
Department defined torture in a much narrower way, for example,
than does the U.S. Army, which has historically carried out most
wartime interrogations.

In the Justice Department's view - contained in
a 50-page document signed by Assistant Attorney General Jay Bybee
and obtained by The Washington Post - inflicting moderate or
fleeting pain does not necessarily constitute torture. Torture,
the memo says, "must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death."

By contrast, the Army's Field Manual 34-52,
titled "Intelligence Interrogations," sets more restrictive rules.
For example, the Army prohibits pain induced by chemicals or
bondage; forcing an individual to stand, sit or kneel in abnormal
positions for prolonged periods of time; and food deprivation.
Under mental torture, the Army prohibits mock executions, sleep
deprivation and chemically induced psychosis.

A spokesman for the White House counsel's
office said, "The president directed the military to treat
al-Qaida and Taliban humanely and consistent with the Geneva
Conventions."

The Justice Department's interpretation for the
CIA sought to provide guidance on what sorts of aggressive
treatments might not fall within the legal definition of
torture.

The 2002 memo, for example, included the
interpretation that "it is difficult to take a specific act out of
context and conclude that the act in isolation would constitute
torture." The memo named seven techniques that courts have
considered torture, including severe beatings with truncheons and
clubs, threats of imminent death, burning with cigarettes,
electric shocks to genitalia, rape or sexual assault, and forcing
a prisoner to watch the torture of another person.

"While we cannot say with certainty that acts
falling short of these seven would not constitute torture," the
memo advised, " ... we believe that interrogation techniques would
have to be similar to these in their extreme nature and in the
type of harm caused to violate law."

"For purely mental pain or suffering to amount
to torture," the memo said, "it must result in significant
psychological harm of significant duration, e.g., lasting for
months or even years."

U.S.'s Ashcroft Won't Release or Discuss
Torture Memo

(Bloomberg) -- U.S. Attorney General John
Ashcroft, warned that he might be risking a contempt citation from
Congress, told lawmakers he won't release or discuss memoranda
that news reports say offered justification for torturing
suspected terrorists.

Democratic members of the Senate Judiciary
Committee asked Ashcroft about reports in the Wall Street Journal,
the Washington Post and the New York Times that the Justice
Department advised the White House in 2002 and 2003 that it might
not be bound by U.S. and international laws prohibiting torture.
Ashcroft said he wouldn't reveal confidential advice he gave to
President George W. Bush or discuss it with Congress.

"This administration rejects torture,''
Ashcroft said as he refused to answer whether he personally
believes torture can be justified under certain circumstances.
Bush "has not directed or ordered any conduct that would violate
the Constitution of the United States,'' any U.S. laws or any
international treaties, Ashcroft said.

The Washington Post, citing a Justice
Department memo, said government lawyers told the White House in
August 2002 that torturing captured al-Qaeda members abroad may be
justified in the war on terrorism.

"You might be in contempt of Congress, then,''
Biden replied. "You have to have a reason. You better come up with
a good rationale.''

Senator Edward Kennedy, a Massachusetts
Democrat, held up copies of some of the photographs that have been
released that depict abuses against inmates at Abu Ghraib prison
near Baghdad. Seven U.S. military police soldiers have been
charged in the abuses.

"This is what directly results when you have
that kind of memoranda out there,'' Kennedy said.

Ashcroft disagreed. "The kind of atrocities''
depicted in the photographs "are being prosecuted by this
administration,'' he said. "They are being investigated by this
administration. They are rejected by this
administration.''

He also challenged the lawmakers on whether
their questions were appropriate. "We are at war,'' Ashcroft said.
"And for us to begin to discuss all the legal ramifications of the
war is not in our best interest, and it has never been in times of
war.''

LEGAL OPINIONS

Lawyers Decided Bans on Torture Didn't Bind
Bush

By NEIL A. LEWIS and ERIC SCHMITT
The New York Times
June 8, 2004
http://www.nytimes.com/2004/06/08/politics/08ABUS.html

WASHINGTON, June 7 &emdash; A team of
administration lawyers concluded in a March 2003 legal memorandum
that President Bush was not bound by either an international
treaty prohibiting torture or by a federal antitorture law because
he had the authority as commander in chief to approve any
technique needed to protect the nation's security.

The memo, prepared for Defense Secretary Donald
H. Rumsfeld, also said that any executive branch officials,
including those in the military, could be immune from domestic and
international prohibitions against torture for a variety of
reasons.

One reason, the lawyers said, would be if
military personnel believed that they were acting on orders from
superiors "except where the conduct goes so far as to be patently
unlawful."

"In order to respect the president's inherent
constitutional authority to manage a military campaign," the
lawyers wrote in the 56-page confidential memorandum, the
prohibition against torture "must be construed as inapplicable to
interrogation undertaken pursuant to his commander-in-chief
authority."

Senior Pentagon officials on Monday sought to
minimize the significance of the March memo, one of several
obtained by The New York Times, as an interim legal analysis that
had no effect on revised interrogation procedures that Mr.
Rumsfeld approved in April 2003 for the American military prison
at Guantánamo Bay, Cuba.

"The April document was about interrogation
techniques and procedures," said Lawrence Di Rita, the Pentagon's
chief spokesman. "It was not a legal analysis."

Mr. Di Rita said the 24 interrogation
procedures permitted at Guantánamo, four of which required
Mr. Rumsfeld's explicit approval, did not constitute torture and
were consistent with international treaties.

The March memorandum, which was first reported
by The Wall Street Journal on Monday, is the latest internal legal
study to be disclosed that shows that after the Sept. 11 terrorist
attacks the administration's lawyers were set to work to find
legal arguments to avoid restrictions imposed by international and
American law.

A Jan. 22, 2002, memorandum from the Justice
Department that provided arguments to keep American officials from
being charged with war crimes for the way prisoners were detained
and interrogated was used extensively as a basis for the March
memorandum on avoiding proscriptions against torture.

The previously disclosed Justice Department
memorandum concluded that administration officials were justified
in asserting that the Geneva Conventions did not apply to
detainees from the Afghanistan war.

Another memorandum obtained by The Times
indicates that most of the administration's top lawyers, with the
exception of those at the State Department and the Joint Chiefs of
Staff, approved of the Justice Department's position that the
Geneva Conventions did not apply to the war in Afghanistan. In
addition, that memorandum, dated Feb. 2, 2002, noted that lawyers
for the Central Intelligence Agency had asked for an explicit
understanding that the administration's public pledge to abide by
the spirit of the conventions did not apply to its
operatives.

The March memo, a copy of which was obtained by
The Times, was prepared as part of a review of interrogation
techniques by a working group appointed by the Defense
Department's general counsel, William J. Haynes. The group itself
was led by the Air Force general counsel, Mary Walker, and
included military and civilian lawyers from all branches of the
armed services.

The review stemmed from concerns raised by
Pentagon lawyers and interrogators at Guantánamo after Mr.
Rumsfeld approved a set of harsher interrogation techniques in
December 2002 to use on a Saudi detainee, Mohamed al-Kahtani, who
was believed to be the planned 20th hijacker in the Sept. 11
terror plot.

Mr. Rumsfeld suspended the harsher techniques,
including serving the detainee cold, prepackaged food instead of
hot rations and shaving off his facial hair, on Jan. 12, pending
the outcome of the working group's review. Gen. James T. Hill,
head of the military's Southern Command, which oversees
Guantánamo, told reporters last Friday that the working
group "wanted to do what is humane and what is legal and
consistent not only with" the Geneva Conventions, but also "what
is right for our soldiers."

Mr. Di Rita said that the Pentagon officials
were focused primarily on the interrogation techniques, and that
the legal rationale included in the March memo was mostly prepared
by the Justice Department and White House counsel's
office.

The memo showed that not only lawyers from the
Defense and Justice departments and the White House approved of
the policy but also that David S. Addington, the counsel to Vice
President Dick Cheney, also was involved in the deliberations. The
State Department lawyer, William H. Taft IV, dissented, warning
that such a position would weaken the protections of the Geneva
Conventions for American troops.

The March 6 document about torture provides
tightly constructed definitions of torture. For example, if an
interrogator "knows that severe pain will result from his actions,
if causing such harm is not his objective, he lacks the requisite
specific intent even though the defendant did not act in good
faith," the report said. "Instead, a defendant is guilty of
torture only if he acts with the express purpose of inflicting
severe pain or suffering on a person within his
control."

The adjective "severe," the report said, "makes
plain that the infliction of pain or suffering per se, whether it
is physical or mental, is insufficient to amount to torture.
Instead, the text provides that pain or suffering must be
`severe.' " The report also advised that if an interrogator "has a
good faith belief his actions will not result in prolonged mental
harm, he lacks the mental state necessary for his actions to
constitute torture."

The report also said that interrogators could
justify breaching laws or treaties by invoking the doctrine of
necessity. An interrogator using techniques that cause harm might
be immune from liability if he "believed at the moment that his
act is necessary and designed to avoid greater harm."

Scott Horton, the former head of the human
rights committee of the Association of the Bar of the City of New
York, said Monday that he believed that the March memorandum on
avoiding responsibility for torture was what caused a delegation
of military lawyers to visit him and complain privately about the
administration's confidential legal arguments. That visit, he
said, resulted in the association undertaking a study and issuing
of a report criticizing the administration. He added that the
lawyers who drafted the torture memo in March could face
professional sanctions.

Jamie Fellner, the director of United States
programs for Human Rights Watch, said Monday, "We believe that
this memo shows that at the highest levels of the Pentagon there
was an interest in using torture as well as a desire to evade the
criminal consequences of doing so."

The March memorandum also contains a curious
section in which the lawyers argued that any torture committed at
Guantánamo would not be a violation of the anti-torture
statute because the base was under American legal jurisdiction and
the statute concerns only torture committed overseas. That view is
in direct conflict with the position the administration has taken
in the Supreme Court, where it has argued that prisoners at
Guantánamo Bay are not entitled to constitutional
protections because the base is outside American
jurisdiction.

Kate Zernike contributed reporting for this
article.

Bush Didn't Order Any Breach of Torture Laws,
Ashcroft Says

By NEIL A. LEWIS
The New York Times
June 9, 2004
http://www.nytimes.com/2004/06/09/politics/09TORT.html

WASHINGTON, June 8 &emdash; Attorney General
John Ashcroft, whose subordinates have written confidential legal
memorandums saying the administration is not bound by prohibitions
against torture, told a Senate committee on Tuesday that President
Bush had "made no order that would require or direct the
violation" of either international treaties or domestic laws
prohibiting torture.

Appearing before the Senate Judiciary
Committee, Mr. Ashcroft was questioned about a cascade of recently
disclosed memorandums in which lawyers from his department as well
as those from the Defense Department and other agencies provided
legal arguments that inflicting pain in interrogating people
detained in the fight against terrorism did not always constitute
torture.

In heated exchanges with Democrats on the
committee, Mr. Ashcroft refused to provide several of the
memorandums, saying they amounted to confidential legal advice
given to the president and did not have to be shared with
Congress.

For the nearly three hours of Mr. Ashcroft's
appearance, the committee room became the stage for a debate that
has ranged across all three branches of the government since the
attacks of Sept. 11, 2001, about the proper reach of a president's
power in wartime.

Senator Edward M. Kennedy, a Massachusetts
Democrat who is a committee member, challenged Mr. Ashcroft on his
unwillingness to release the memorandums and said that the
reported abuses of Iraqi prisoners at the Abu Ghraib prison were
the inevitable outcome of the administration's efforts to find
ways to evade legal responsibility.

Mr. Kennedy cited one of the memorandums
reported in newspapers on Tuesday that concluded President Bush
was not bound either by international treaties prohibiting torture
or by federal anti-torture law because as commander-in-chief Mr.
Bush was responsible for protecting the nation.

"In other words, the president of the United
States has the responsibility," Mr. Kennedy said, holding up a
photograph of prisoners cowering before American guards and dogs
at Abu Ghraib. "We know when we have these kinds of orders, what
happens. We get the stress test, we get the use of dogs, we get
the forced nakedness that we've all seen on these and we get the
hooding. This is what you get with those kind of memoranda out
there."

The administration has responded to the
memorandums by saying they were merely legal opinions offered as
policies were being formulated.

"First of all," Mr. Ashcroft said, "this
administration opposes torture," adding that the "kind of
atrocities displayed in the photographs are being prosecuted by
this administration."

Mr. Ashcroft strove to make a distinction
between memorandums that may have provided theoretical legal
justifications for torture and his assertion that there had never
been any directive that actually authorized its use.

But the memorandums, by their numbers and their
arguments &emdash; aimed at justifying the use of interrogation
techniques inflicting pain by spelling out instances when this did
not legally constitute torture and the inapplicability of
international treaties &emdash; have produced outrage from
international human rights groups and members of Congress, mostly
Democrats.

Over the past few weeks, The New York Times,
Newsweek, The Washington Post and The Wall Street Journal have
disclosed memorandums that show a pattern in which administration
lawyers set about devising arguments to avoid constraints against
mistreatment and torture.

Mr. Ashcroft's appearance before the committee
had been scheduled before most of the memorandums were disclosed,
and he looked deeply uncomfortable under the harsh
questioning.

He said several times that critics consistently
failed to take into account that the United States was at
war.

Mr. Kennedy challenged Mr. Ashcroft, telling
him he could not withhold the memorandums from Congress unless
there was an invocation of executive privilege, something only the
president himself can do. Mr. Ashcroft seemed uncertain when he
was asked if he had spoken to the president about invoking
it.

He eventually said he was not invoking the
privilege but that it was simply not good policy to openly debate
what powers a president had in wartime.

Senator Joseph R. Biden Jr., Democrat of
Delaware, in a heated exchange with Mr. Ashcroft, asked him if he
believed torture was ever justified. When he first declined to
answer, Mr. Biden accused him of being evasive, and Mr. Ashcroft
replied: "You know I condemn torture. I don't think it's
productive, let alone justified."

But Mr. Biden persisted, saying: "There's a
reason why we sign these treaties: to protect my son in the
military. That's why we have these treaties, so when Americans are
captured they are not tortured. That's the reason in case anybody
forgets it."

One of the recently published memorandums,
dated March 6, 2003, provides elaborate and tightly constructed
definitions of torture in an effort to to allow interrogators to
avoid being charged with that offense. For example, if an
interrogator "knows that severe pain will result from his actions,
if causing such harm is not his objective, he lacks the requisite
specific intent even though the defendant did not act in good
faith," the report said. "Instead, a defendant is guilty of
torture only if he acts with the express purpose of inflicting
severe pain or suffering on a person within his
control."

Another memorandum, written in August 2002 and
disclosed Tuesday by The Washington Post, appeared to establish a
basis for the use of torture for senior Al Qaeda operatives in
custody of the C.I.A. That memorandum was written by Jay S. Bybee,
then the associate attorney general. Mr. Bybee, now a federal
appeals court judge in California, did not respond to telephone
messages.

Mr. Ashcroft said proof that the administration
was opposed to torture in practice, despite any legal memorandums,
could be seen in the establishment of a task force to prosecute
charges of abuse against United States contractors and
soldiers.

While most Republican committee members
defended Mr. Ashcroft, Senator Larry Craig, an Idaho Republican,
told Mr. Ashcroft that he was disturbed by the growing power of
the executive branch.

"I hope that in the end," Mr. Craig said,
"Saddam Hussein will not have taken away from us something that
our Constitution, in large part, granted us, and that we have it
taken away in the name of safety and security."

THE MEMORANDUMS

Documents Build a Case for Working Outside the
Laws in Interrogations

NEIL A. LEWIS
The New York Times
June 9, 2004
http://www.nytimes.com/2004/06/09/politics/09TTEX.html

JANUARY, 2002 -- A series of memorandums from
the Justice Department, many of them written by John C. Yoo, a
University of California law professor who was serving in the
department, provided arguments to keep United States officials
from being charged with war crimes for the way prisoners were
detained and interrogated. The memorandums, principally one
written on Jan. 9, provided legal arguments to support
administration officials' assertions that the Geneva Conventions
did not apply to detainees from the war in Afghanistan.

JAN. 25, 2002 -- Alberto R. Gonzales, the White
House counsel, in a memorandum to President Bush, said that the
Justice Department's advice in the Jan. 9 memorandum was sound and
that Mr. Bush should declare the Taliban and Al Qaeda outside the
coverage of the Geneva Conventions. That would keep American
officials from being exposed to the federal War Crimes Act, a 1996
law that carries the death penalty.

JAN. 26, 2002 -- In a memorandum to the White
House, Secretary of State Colin L. Powell said the advantages of
applying the Geneva Conventions far outweighed their rejection. He
said that declaring the conventions inapplicable would "reverse
over a century of U.S. policy and practice in supporting the
Geneva Conventions and undermine the protections of the laws of
war for our troops." He also said it would "undermine public
support among critical allies."

FEB. 2, 2002 -- A memorandum from William H.
Taft IV, the State Department's legal adviser, to Mr. Gonzales
warned that the broad rejection of the Geneva Conventions posed
several problems. "A decision that the conventions do not apply to
the conflict in Afghanistan in which our armed forces are engaged
deprives our troops there of any claim to the protection of the
conventions in the event they are captured." An attachment to this
memorandum, written by a State Department lawyer, showed that most
of the administration's senior lawyers agreed that the Geneva
Conventions were inapplicable. The attachment noted that C.I.A.
lawyers asked for an explicit understanding that the
administration's public pledge to abide by the spirit of the
conventions did not apply to its operatives.

AUGUST, 2002 -- A memorandum from the Office of
Legal Counsel in the Justice Department provided a rationale for
using torture to extract information from Qaeda operatives. It
provided complex definitions of torture that seemed devised to
allow interrogators to evade being charged with that
offense.

MARCH, 2003 -- A memorandum prepared by a
Defense Department legal task force drew on the January and August
memorandums to declare that President Bush was not bound by either
an international treaty prohibiting torture or by a federal
anti-torture law because he had the authority as commander in
chief to approve any technique needed to protect the nation's
security. The memorandum also said that executive branch
officials, including those in the military, could be immune from
domestic and international prohibitions against torture for a
variety of reasons, including a belief by interrogators that they
were acting on orders from superiors "except where the conduct
goes so far as to be patently unlawful.'

APRIL, 2003 -- A memorandum from Secretary of
Defense Donald H. Rumsfeld to Gen. James T. Hill outlined 24
permitted interrogation techniques, 4 of which were considered
stressful enough to require Mr. Rumsfeld's explicit approval.
Defense Department officials say it did not refer to the legal
analysis of the month before.

DEC. 24, 2003 -- A letter to the International
Committee of the Red Cross over the signature of Brig. Gen. Janis
Karpinski was prepared by military lawyers. The letter, a response
to the Red Cross's concern about conditions at Abu Ghraib,
contended that isolating some inmates at the prison for
interrogation because of their significant intelligence value was
a "military necessity," and said prisoners held as security risks
could legally be treated differently from prisoners of war or
ordinary criminals.

OTHER MEMORANDUMS -- Some have been described
in reports in The Times and elsewhere, but their exact contents
have not been disclosed. These include a memorandum that provided
advice to interrogators to shield them from liability from the
Convention Against Torture, an international treaty and the
Anti-Torture Act, a federal law. This memorandum provided what has
been described as a script in which officials were advised that
they could avoid responsibility if they were able to plausibly
contend that the prisoner was in the custody of another government
and that the United States officials were just getting the
information from the other country's interrogation. The memorandum
advised that for this to work, the United States officials must be
able to contend that the prisoner was always in the other
country's custody and had not been transferred there.
International law prohibits the "rendition" of prisoners to
countries if the possibility of mistreatment can be
anticipated.

Memo on Torture Draws Focus to
Bush

Aide Says President Set Guidelines for
Interrogations, Not Specific Techniques

The disclosure that the Justice Department
advised the White House in 2002 that the torture of al Qaeda
terrorist suspects might be legally defensible has focused new
attention on the role President Bush played in setting the rules
for interrogations in the war on terrorism.

White House press secretary Scott McClellan
said yesterday that Bush set broad guidelines, rather than dealing
with specific techniques. "While we will seek to gather
intelligence from al Qaeda terrorists who seek to inflict mass
harm on the American people, the president expects that we do so
in a way that is consistent with our laws," McClellan
said.

White House Counsel Alberto R. Gonzales said in
a May 21 interview with The Washington Post: "Anytime a discussion
came up about interrogations with the president, . . . the
directive was, 'Make sure it is lawful. Make sure it meets all of
our obligations under the Constitution, U.S. federal statutes and
applicable treaties.' "

An Aug. 1, 2002, memo from the Justice
Department's Office of Legal Counsel, addressed to Gonzales, said
that torturing suspected al Qaeda members abroad "may be
justified" and that international laws against torture "may be
unconstitutional if applied to interrogation" conducted against
suspected terrorists.

The document provided legal guidance for the
CIA, which crafted new, more aggressive techniques for its
operatives in the field. McClellan called the memo a historic or
scholarly review of laws and conventions concerning torture. "The
memo was not prepared to provide advice on specific methods or
techniques," he said. "It was analytical."

Attorney General John D. Ashcroft yesterday
refused senators' requests to make public the memo, which is not
classified, and would not discuss any possible involvement of the
president.

In the view expressed by the Justice Department
memo, which differs from the view of the Army, physical torture
"must be equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily
function, or even death." For a cruel or inhuman psychological
technique to rise to the level of mental torture, the Justice
Department argued, the psychological harm must last "months or
even years."

A former senior administration official
involved in discussions about CIA interrogation techniques said
Bush's aides knew he wanted them to take an aggressive
approach.

"He felt very keenly that his primary
responsibility was to do everything within his power to keep the
country safe, and he was not concerned with appearances or
politics or hiding behind lower-level officials," the official
said. "That is not to say he was ready to authorize stuff that
would be contrary to law. The whole reason for having the careful
legal reviews that went on was to ensure he was not doing
that."

The August memo was written in response to a
CIA request for legal guidance in the months after Sept. 11, 2001,
as agency operatives began to detain and interrogate key al Qaeda
leaders. The fact that the memo was signed by Jay S. Bybee, head
of the Office Legal Counsel, who has since become a federal judge,
and is 50 pages long indicates that the issue was treated as a
significant matter.

"Given the topic and length of opinion, it had
to get pretty high-level attention," said Beth Nolan, commenting
on the process that was in place when she was President Bill
Clinton's White House counsel, from 1999 to 2001, and, previously,
when she was a lawyer in the Office of Legal Counsel.

Unlike documents signed by deputies in the
Office of Legal Counsel, which are generally considered by federal
agencies as advice, a memorandum written by the head of the office
is considered akin to a legally binding document, said another
former Office of Legal Counsel lawyer.

The former administration official said the CIA
"was prepared to get more aggressive and re-learn old skills, but
only with explicit assurances from the top that they were doing so
with the full legal authority the president could confer on
them."

Critics familiar with the August 2002 memo and
another, similar legal opinion given by the Defense Department's
office of general counsel in March 2003 assert that government
lawyers were trying to find a legal justification for actions --
torture or cruel and inhumane acts -- that are clearly illegal
under U.S. and international law.

"This is painful, incorrect analysis," said
Scott Norton, chairman of the international law committee of the
New York City Bar Association, which has produced an extensive
report on Pentagon detentions and interrogations. "A lawyer is
permitted to craft all sorts of wily arguments about why a statute
doesn't apply" to a defendant, he said. "But a lawyer cannot
advocate committing a criminal act prospectively."

The August 2002 memo from the Justice
Department concluded that laws outlawing torture do not bind Bush
because of his constitutional authority to conduct a military
campaign. "As Commander in Chief, the President has the
constitutional authority to order interrogations of enemy
combatants to gain intelligence information concerning the
military plans of the enemy," said the memo, obtained by The
Washington Post.

Critics say that this misstates the law, and
that it ignores key legal decisions, such as the landmark 1952
Supreme Court ruling in Youngstown Steel and Tube Co v. Sawyer,
which said that the president, even in wartime, must abide by
established U.S. laws.

Torture memo

http://normblog.typepad.com/normblog/

The leaked Justice Department memo
(http://www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html)
adds to the worries that arose out of the Abu Ghraib scandal
concerning how far up the chain of command responsibility for
abuse of prisoners may have gone:

The legal reasoning in the 2002 memo, which
covered treatment of al Qaeda detainees in CIA custody, was later
used in a March 2003 report by Pentagon lawyers assessing
interrogation rules governing the Defense Department's detention
center at Guantanamo Bay, Cuba. At that time, Defense Secretary
Donald H. Rumsfeld had asked the lawyers to examine the
logistical, policy and legal issues associated with interrogation
techniques.



In the 2002 memo, written for the CIA and
addressed to White House Counsel Alberto R. Gonzales, the Justice
Department defined torture in a much narrower way, for example,
than does the U.S. Army, which has historically carried out most
wartime interrogations.

In the Justice Department's view - contained in
a 50-page document signed by Assistant Attorney General Jay S.
Bybee and obtained by The Washington Post - inflicting moderate or
fleeting pain does not necessarily constitute torture. Torture,
the memo says, "must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death."

By contrast, the Army's Field Manual 34-52,
titled "Intelligence Interrogations," sets more restrictive rules.
For example, the Army prohibits pain induced by chemicals or
bondage; forcing an individual to stand, sit or kneel in abnormal
positions for prolonged periods of time; and food deprivation.
Under mental torture, the Army prohibits mock executions, sleep
deprivation and chemically induced psychosis.



In a draft of the working group's report, for
example, Pentagon lawyers approvingly cited the Justice
Department's 2002 position that domestic and international laws
prohibiting torture could be trumped by the president's wartime
authority and any directives he issued.

At the time, the Justice Department's legal
analysis, however, shocked some of the military lawyers who were
involved in crafting the new guidelines, said senior defense
officials and military lawyers.

"Every flag JAG lodged complaints," said one
senior Pentagon official involved in the process, referring to the
judge advocate generals who are military lawyers of each
service.

"It's really unprecedented. For almost 30 years
we've taught the Geneva Convention one way," said a senior
military attorney. "Once you start telling people it's okay to
break the law, there's no telling where they might
stop."

A U.S. law enacted in 1994 bars torture by U.S.
military personnel anywhere in the world. But the Pentagon group's
report, prepared under the supervision of General Counsel William
J. Haynes II, said that "in order to respect the President's
inherent constitutional authority to manage a military campaign .
. . [the prohibition against torture] must be construed as
inapplicable to interrogations undertaken pursuant to his
Commander-in-Chief authority."

The Pentagon group's report, divulged yesterday
by the Wall Street Journal and obtained by The Post, said further
that the 1994 law barring torture "does not apply to the conduct
of U.S. personnel" at Guantanamo Bay.

The Defense Department is denying that the memo
had any influence on policy and practice. They need to be able to
back that denial up. Can they?

Torture Memo

http://archive.salon.com/politics/war_room/2004/06/09/mustreads/

Torture probe focus turns to Bush

"First of all," Attorney General John Ashcroft
told senators on Tuesday, "this administration opposes torture."
His proof? The administration is prosecuting cases of torture and
mistreatment of prisoners at Abu Ghraib prison. So far, six Army
prison guards await court-martial and a seventh has pleaded
guilty. Meanwhile, the evidence continues to mount showing the
administration built a case that torture is within the legal
bounds of its power in the war on terror. Ashcroft refused to
release an August 2002 memo -- which is not classified -- when
asked for it on Tuesday by senators. But a Pentagon report based
in part on the logic presented in the DOJ memo, that President
Bush is above domestic and international laws of torture when it
comes to interrogating terror suspects, is online here.

The Washington Post today reports that the DOJ
memo Ashcroft won't release turns the focus on the role President
Bush has played in setting the rules for interrogations of
terrorism suspects.

"A former senior administration official
involved in discussions about CIA interrogation techniques said
Bush's aides knew he wanted them to take an aggressive
approach."

"'He felt very keenly that his primary
responsibility was to do everything within his power to keep the
country safe, and he was not concerned with appearances or
politics or hiding behind lower-level officials,' he said. 'That
is not to say he was ready to authorize stuff that would be
contrary to law. The whole reason for having the careful legal
reviews that went on was to ensure he was not doing
that.'"

"The August memorandum was written in response
to a CIA request for legal guidance in the months after Sept. 11,
2001, as agency operatives began to detain and interrogate key al
Qaeda leaders. The fact that the memo was signed by Jay S. Bybee,
head of the Office Legal Counsel, who has since become a federal
judge, and is 50 pages long indicates that the issue was treated
as a significant matter."

"'Given the topic and length of opinion, it had
to get pretty high-level attention,' said Beth Nolan, commenting
on the process that was in place when she was President Bill
Clinton's White House counsel, from 1999 to 2001, and, previously,
when she was a lawyer in the Justice Department's Office of Legal
Counsel."

Rummy's office said: 'Take the gloves off'

The Los Angeles Times reports that as early as
2001, when Johnny Walker Lindh was captured in Afghanistan,
military intelligence officers said they were instructed by Donald
Rumsfeld's office to "take the gloves off" in questioning
him.

"What happened to Lindh, who was stripped and
humiliated by his captors, foreshadowed the type of abuse
documented in photographs of American soldiers tormenting Iraqi
prisoners at Abu Ghraib."

"At the time, just weeks after the Sept. 11
terrorist attacks, the U.S. was desperate to find terrorist leader
Osama bin Laden. After Lindh asked for a lawyer rather than talk
to interrogators, he was not granted one nor was he advised of his
Miranda rights against self-incrimination. Instead, the Pentagon
ordered intelligence officers to get tough with him."

"The documents, read to The Times by two
sources critical of how the government handled the Lindh case,
show that after an Army intelligence officer began to question
Lindh, a Navy admiral told the intelligence officer that 'the
secretary of Defense's counsel has authorized him to 'take the
gloves off' and ask whatever he wanted.' Lindh was being
questioned while he was propped up naked and tied to a stretcher
in interrogation sessions that went on for days, according to
court papers. In the early stages, his responses were cabled to
Washington hourly, the new documents show."

Justice Dept. Memo Says Torture 'May Be
Justified'

Today washingtonpost.com is posting a copy of
the Aug.
1, 2002, memorandum (PDF) "Re:
Standards of Conduct for Interrogation under 18 U.S.C.
2340-2340A," from the Justice Department's Office of Legal Counsel
for Alberto R. Gonzales, counsel to President Bush.

The memo was written at the request of the CIA.
The CIA wanted authority to conduct more aggressive interrogations
than were permitted prior to the terrorist attacks of Sept. 11,
2001. The interrogations were of suspected al Qaeda members whom
the CIA had apprehended outside the United States. The CIA asked
the White House for legal guidance. The White House asked the
Justice Department's Office of Legal Counsel for its legal opinion
on the standards of conduct under the Convention Against Torture
and Other Cruel, Inhumane and Degrading Treatment or
Punishment.

The Office of Legal Counsel is the federal
government's ultimate legal adviser. The most significant and
sensitive topics that the federal government considers are often
given to the OLC for review. In this case, the memorandum was
signed by Jay S. Bybee, the head of the office at the time.
Bybee's signature gives the document additional authority, making
it akin to a binding legal opinion on government policy on
interrogations. Bybee has since become a judge on the 9th U.S.
Circuit Court of Appeals.

Another memorandum,
dated March 6, 2003, from a Defense Department working group
convened by Defense Secretary Donald H. Rumsfeld to come up with
new interrogation guidelines for detainees at Guantanamo Bay,
Cuba, incorporated much, but not all, of the legal thinking from
the OLC memo. The Wall Street Journal first published the March
memo.

At a recent Senate Judiciary Committee hearing,
senators asked Attorney General John D. Ashcroft to release both
memos. Ashcroft said he would not discuss the contents of the
Justice and Pentagon memos or turn them over to the committees. A
transcript of that hearing is also available.

President Bush spoke on the issue of torture
Thursday, saying he expected U.S. authorities to abide by the law.
He declined to say whether he believes U.S. law prohibits torture.
Here is a link to the transcript of the president's press
conference, which included questions and answers on
torture.

The Post deleted several lines from the memo
that are not germane to the legal arguments being made in it and
that are the subject of further reporting by The Post.

Aides Say Memo Backed Coercion for Qaeda
Cases

By DAVID JOHNSTON and JAMES RISEN
The New York Times
June 27, 2004
http://www.nytimes.com/2004/06/27/international/middleeast/27MEMO.html

WASHINGTON, June 26 &emdash; An August 2002
memo by the Justice Department that concluded interrogators could
use extreme techniques on detainees in the war on terror helped
provide an after-the-fact legal basis for harsh procedures used by
the C.I.A. on high-level leaders of Al Qaeda, according to current
and former government officials.

The legal memo was prepared after an internal
debate within the government about the methods used to extract
information from Abu Zubaydah, one of Osama bin Laden's top aides,
after his capture in April 2002, the officials said. The memo
provided a legal foundation for coercive techniques used later
against other high-ranking detainees, like Khalid Shaikh Mohammed,
believed to be the chief architect of the attacks of Sept. 11,
2001, who was captured in early 2003.

The full text of the memo was made public by
the White House on Tuesday without explanation about why it was
written or whether its standards were applied. Until now, it has
not been clear that the memo was written in response to the
C.I.A.'s efforts to extract information from high-ranking Qaeda
suspects, and was unrelated to questions about handling detainees
at Guantánamo Bay or in Iraq.

The memo suggested that the president could
authorize a wide array of coercive interrogation methods in the
campaign against terrorism without violating international
treaties or the federal torture law. It did not specify any
particular procedures but suggested there were few limits short of
causing the death of a prisoner. The methods used on Mr. Zubaydah
and other senior Qaeda operatives stirred controversy in
government counterterrorism circles and concern over whether
C.I.A. employees might be held liable for violating the federal
torture law.

While the memo appeared to give the C.I.A. wide
latitude in adopting tactics to interrogate high-level Qaeda
detainees, it is still unclear exactly what procedures were used
or the extent to which the memo influenced the government's
overall thinking about interrogations of other terror detainees
captured in Afghanistan and elsewhere.

The officials said the memo illustrated that
the Bush administration, in the months after the September 2001
attacks, was urgently looking for ways to force senior Qaeda
detainees to disclose whether they knew of any future terrorist
attacks planned against the United States.

The memo, which is dated Aug. 1, 2002, was a
seminal legal document guiding the government's thinking on
interrogation. It was disavowed earlier this week by senior legal
advisers to the Bush administration who said the memo would be
reviewed and revised because it created a false impression that
torture could be legally defensible.

In repudiating the memo in briefings this week,
none of the senior Bush legal advisers whom the White House made
available to reporters would discuss who had requested that the
memo be prepared, why it had been prepared or how it was applied.
On Friday, the Justice Department and C.I.A. would not discuss the
origins of the memo, but in the past officials at those agencies
have said that the interrogation techniques used on detainees were
lawful and did not violate the torture statute, which generally
forbids inflicting severe and prolonged pain.

The memo was addressed to Alberto R. Gonzales,
the White House counsel, and signed by Jay S. Bybee, then the head
of the Justice Department's Office of Legal Counsel. It said the
document was an effort to define "standards of conduct" under
international treaties and federal law. The memo concluded that a
coercive procedure could not be considered torture unless it
caused pain equivalent to that accompanying "serious physical
injury, such as organ failure, impairment of bodily function or
even death."

The Justice Department was asked to prepare the
memo about the time of Mr. Zubaydah's capture in April 2002, the
officials said, in an effort to clarify the permissible limits of
interrogation because of questions raised by the treatment of Mr.
Zubaydah and a few other Qaeda operatives then in custody. It
remains unclear what role Attorney General John Ashcroft played in
the debate over interrogation techniques or in the preparation of
the memo, but Justice Department officials said he did not review
it before it was sent to the White House.

Mr. Zubaydah, who managed Al Qaeda's worldwide
recruiting system for Mr. bin Laden's training camps in
Afghanistan, was one of the first high-level detainees captured
after the Sept. 11 attacks. The full extent of the tactics used
during his interrogation are still not publicly known, but the
methods provoked the concerns within the C.I.A. about possible
violation of the federal torture law. That law makes it a crime
for an American operating overseas under governmental authority to
torture anyone under his control. The tactics also raised concerns
at the F.B.I., where some agents knew of the techniques being used
on Mr. Zubaydah.

It is known that some Qaeda leaders were
deprived of sleep and food and were threatened with beatings. In
one instance a gun was waved near a prisoner, and in another a
noose was hung close to a detainee.

Mr. Mohammed was "waterboarded" &emdash;
strapped to a board and immersed in water &emdash; a technique
used to make the subject believe that he might be drowned,
officials said.

In the end, administration officials considered
Mr. Zubaydah's interrogation an example of the successful use of
harsh interrogation techniques. Most notably, they said, he helped
identify Mr. Mohammed as the principal architect of the September
2001 hijacking plot and was the source of information about Jose
Padilla, who was arrested in May 2002 in what officials said was a
nascent plot to develop a dirty bomb using radiological
materials.

Since Mr. Zubaydah's capture, another dozen to
two dozen high-level Qaeda operatives have been taken into custody
in a classified C.I.A. interrogation program.

An article in Sunday's Washington Post reported
that the C.I.A. had suspended the use of the extreme interrogation
tactics at the agency's detention facilities around the world
pending a review by Justice Department and other administration
lawyers, although the decision does not apply to military prisons
such as the one at Guantánamo Bay. A C.I.A. spokesman
declined to comment on the report.

The Bybee memo, the officials said, was not
intended to support the use of aggressive techniques on less
important captives held at Guantánamo Bay, or on Iraqi
captives held at Abu Ghraib and other prisons in Iraq. In
addition, some of the officials said they wanted to explain the
background of the memo because they hoped to dispel the impression
that Mr. Bybee, now a judge on the United States Court of Appeals
for the Ninth Circuit, was a rogue advocate of potentially
unlawful torture tactics. Instead, they said, Mr. Bybee and other
lawyers who helped prepare the memo were trying to explore the
boundaries of what the law might allow in the context of
high-level Qaeda detainees.

The officials said the memo followed a series
of exchanges between the C.I.A. and the Justice Department over
the legality of specific techniques used on detainees not long
after the Bush administration had decided to keep them out of the
American judicial system and treat them as unlawful combatants who
would not be protected by the Geneva Conventions, which bar harsh
treatment of prisoners of war.

At the time of the Sept. 11 attacks, the Bush
administration did not have an established infrastructure or legal
framework for handling terrorism detainees. But after the attacks,
the administration decided that terrorism should be considered a
national security issue rather than a law enforcement matter, and
Mr. Bush turned to the C.I.A., rather than the F.B.I., to take the
lead in the detention and questioning of captured Qaeda
leaders.

Mr. Bybee's memo provided sweeping legal
authority for a wide range of interrogation techniques to be used
on Qaeda operatives. To be regarded as torture, the memo said,
mental pain must also be caused by "threats of imminent death;
threats of infliction of the kind of pain that would amount to
physical torture; infliction of such physical pain as a means of
psychological torture; use of drugs or other procedures designed
to deeply disrupt the senses, or fundamentally alter an
individual's personality; or threatening to do any of these things
to a third party." The memo added that the use of drugs under
certain circumstances during interrogations would be permitted, as
long as their effects fell short of what it described as legally
prohibited: the "profound disruption of the senses or
personality." The memo then explained at length that the
definition of the word "profound" allowed for a broad
interpretation of what measures were acceptable short of
that.

"By requiring that the procedures and the drugs
create a profound disruption, the statute requires more than that
the acts forcibly separate or rend the sense or personality," it
said. "Those acts must penetrate to the core of an individual's
ability to perceive the world around him, substantially
interfering with his cognitive abilities, or fundamentally alter
his personality."

WORD FOR WORD

Defining Torture: Russian Roulette, Yes.
Mind-Altering Drugs, Maybe.

By KATE ZERNIKE
The New York Times
June 27, 2004
http://www.nytimes.com/2004/06/27/weekinreview/27word.html

If all the memos released by the White House
last week in response to the prison abuse scandal in Iraq, none
have been more incendiary than the so-called torture memo, dated
Aug. 1, 2002, and written by Jay S. Bybee, the assistant attorney
general in charge of the Office of Legal Counsel at the Justice
Department.

The department and the White House have
distanced themselves from the document. But the memorandum's
antiseptic discussion of the definition of torture is likely to
continue to fuel the debate. Following are a few
excerpts.



The memo starts by explaining that some acts
may be "cruel, inhuman or degrading" but not constitute torture
under Section 2340, the federal law criminalizing torture. To rise
to the level of torture, it argues, the acts must be of an extreme
nature, specifically intended to inflict severe pain or suffering,
mental or physical. But the statute is vague on the meaning of
"severe," so the authors try to construct one.

In the absence of such a definition, we
construe a statutory term in accordance with its ordinary and
natural meaning. The dictionary defines severe as "unsparing in
exaction, punishment or censure" or "inflicting discomfort or pain
hard to endure; sharp; afflictive; distressing; violent; extreme;
as severe pain, anguish, torture" "extremely violent or grievous,
severe pain" "of pain, suffering, loss, or the like: grievous,
extreme" and "of circumstances hard to sustain or endure." Thus
the adjective "severe" conveys that the pain or suffering must be
of such a high level of intensity that the pain is difficult for
the subject to endure.



A good model, the memo suggests, can be
found in statutes regulating what kind of emergency medical
conditions qualify for payments of health benefits.

Although these statutes address a substantially
different subject from Section 2340, they are nonetheless helpful
for understanding what constitutes severe pain. They treat severe
pain as an indicator of ailments that are likely to result in
permanent and serious physical damage in the absence of immediate
medical treatment. Such damage must rise to the level of death,
organ failure or the permanent impairment of a significant body
function. These statutes suggest that "severe pain" as used in
Section 2340, must rise to a similarly high level, the level that
would ordinarily be associated with a sufficiently serious
physical condition or injury such as death, organ failure or
serious impairment of body functions in order to constitute
torture.



Turning to the matter of what constitutes
severe mental pain, the memo notes that the statute prohibits
torture caused by mind-altering substances, which the authors take
to mean drugs. But, the memo argues, this doesn't rule out all
drugs.

Instead, it prohibits the use of drugs that
"disrupt profoundly the sense or the personality." By requiring
that the procedures and the drugs create a profound disruption,
the statue requires more than that the acts "forcibly separate" or
"rend" the senses or personality. Those acts must penetrate to the
core of an individual's ability to perceive the world around him,
substantially interfering with his cognitive abilities or
fundamentally alter his personality.

The authors say they cannot find a
definition of profound mental disruption in mental health
literature or United States law, so they offer some examples of
their own.

Such an effect might be seen in a drug-induced
dementia. In such a state, the individual suffers from significant
memory impairment, such as the inability to retain any new
information or recall information about thin previously of
interest to the individual. This impairment is accompanied by one
or more of the following: deterioration of language function,
e.g., repeating sounds and words over and over again; impaired
ability to execute simple motor activities, e.g., inability to
dress or wave goodbye; inability to recognize and identify objects
such as chairs or pencils despite normal vision functioning.
Moreover, we think that pushing someone to the brink of suicide,
particularly where the person comes from a culture with strong
taboos against suicide and it is evidenced by acts of
self-mutilation, would be a sufficient disruption of the
personality to constitute a "profound disruption."



The torture statute also says that severe
mental pain can result from the threat of imminent death, the
authors note. Imminent, however, is the operative
word.

Threats referring vaguely to things that might
happen in the future do not satisfy this immediacy requirement.
Such a threat fails to satisfy this requirement not because it is
too remote in time but because there is a lack of certainty it
will occur. Indeed, timing is an indicator of certainty that the
harm will befall the defendant. Thus, a vague threat that someday
the prisoner might be killed would not suffice. Instead,
subjecting a prisoner to mock executions or playing Russian
roulette with him would have sufficient immediacy to constitute a
threat of imminent death.



The authors then look to the federal Torture
Victims Protection Act to see how it defines torture. They note
that the courts have not given lengthy analysis on this subject.
But at least seven acts consistently reappear in decisions about
violations of the law, suggesting to the authors at least seven
firm examples of torture.

1) Severe beatings using instruments such as
iron barks, truncheons and clubs; 2) threats of imminent death,
such as mock executions; 3) threats of removing extremities; 4)
burning, especially burning with cigarettes; 5) electric shocks to
genitalia or threats to do so; 6) rape or sexual assault, or
injury to an individual's sexual organs, or threatening to do any
of these sorts of acts; and 7) forcing the prisoner to watch the
torture of others. While we cannot say with certainty that acts
falling short of these seven would not constitute torture under
Section 2340, we believe that interrogation techniques would have
to be similar to these in their extreme nature and in the type of
harm caused to violate the law.



In an appendix, the memo lists several cases
in which American courts have ruled that the victim was tortured.
One case describes what happened to three Americans who were held
as hostages in Lebanon. They sued the government of Iran for its
role in their kidnapping.

Plaintiff was kidnapped at gunpoint. He was
beaten for several days after his kidnapping. He was subjected to
daily torture and threats of death. He was kept in solitary
confinement for two years. During that time, he was blindfolded
and chained to the wall in a 6-foot-by-6-foot room infested with
rodents. He was shackled in a stooped position for 44 months, and
he developed eye infections as a result of the blindfolds.
Additionally, his captors did the following: forced him to kneel
on spikes; administered electric shocks to his hands; battered his
feet with iron bars and struck him in the kidneys with a rifle;
struck him on the side of his head with a hand grenade, breaking
his nose and jaw; placed boiling tea kettles on his shoulders; and
they laced his food with arsenic.

The memo ends by noting two cases in which
courts ruled there was no torture.

The plaintiff was held for eight days in a
filthy cell with drug dealers and an AIDS patient. He received no
food, no blanket and no protection from other inmates. Prisoners
murdered one another in front of the plaintiff. The court flatly
rejected the plaintiffs claim that this constituted
torture.

COMPLETE COVERAGE

A Guide to the Memos on Torture

By THE NEW YORK
TIMES

http://www.nytimes.com/ref/international/24MEMO-GUIDE.html

The New York Times, Newsweek, The
Washington Post and The Wall Street Journal have disclosed
memorandums that show a pattern in which Bush administration
lawyers set about devising arguments to avoid constraints against
mistreatment and torture of detainees. Administration officials
responded by releasing hundreds of pages of previously classified
documents related to the development of a policy on
detainees.

2002

JANUARY A series of
memorandums from the Justice Department, many of them written by
John C. Yoo, a University of California law
professor who was serving in the department, provided arguments to
keep United States officials from being charged with war crimes
for the way prisoners were detained and interrogated. The
memorandums, principally one written on Jan. 9, provided legal
arguments to support administration officials' assertions that the
Geneva Conventions did not apply to detainees from the war in
Afghanistan.

JAN. 25Alberto R.
Gonzales, the White House counsel, in a memorandum to
President Bush, said that the Justice
Department's advice in the Jan. 9 memorandum was sound and that
Mr. Bush should declare the Taliban and Al Qaeda outside the
coverage of the Geneva Conventions. That would keep American
officials from being exposed to the federal War Crimes Act, a 1996
law that carries the death penalty.

JAN. 26 In a memorandum to the
White House, Secretary of State Colin L. Powell
said the advantages of applying the Geneva Conventions far
outweighed their rejection. He said that declaring the conventions
inapplicable would "reverse over a century of U.S. policy and
practice in supporting the Geneva Conventions and undermine the
protections of the laws of war for our troops." He also said it
would "undermine public support among critical allies."

FEB. 2 A memorandum from
William H. Taft IV, the State Department's legal
adviser, to Mr. Gonzales warned that the broad rejection of the
Geneva Conventions posed several problems. "A decision that the
conventions do not apply to the conflict in Afghanistan in which
our armed forces are engaged deprives our troops there of any
claim to the protection of the conventions in the event they are
captured." An attachment to this memorandum, written by a State
Department lawyer, showed that most of the administration's senior
lawyers agreed that the Geneva Conventions were inapplicable. The
attachment noted that C.I.A. lawyers asked for an explicit
understanding that the administration's public pledge to abide by
the spirit of the conventions did not apply to its
operatives.

FEB. 7 In a directive that set
new rules for handling prisoners captured in Afghanistan,
President Bush broadly cited the need for "new
thinking in the law of war." He ordered that all people detained
as part of the fight against terrorism should be treated humanely
even if the United States considered them not to be protected by
the Geneva Conventions, the White House said. Document released by
White House.

AUGUST A memorandum from
Jay S. Bybee, with the Office of Legal Counsel in
the Justice Department, provided a rationale for using torture to
extract information from Qaeda operatives. It provided complex
definitions of torture that seemed devised to allow interrogators
to evade being charged with that offense.

MARCH A memorandum prepared by
a Defense Department legal task force drew on the January and
August memorandums to declare that President Bush
was not bound by either an international treaty prohibiting
torture or by a federal anti-torture law because he had the
authority as commander in chief to approve any technique needed to
protect the nation's security. The memorandum also said that
executive branch officials, including those in the military, could
be immune from domestic and international prohibitions against
torture for a variety of reasons, including a belief by
interrogators that they were acting on orders from superiors
"except where the conduct goes so far as to be patently
unlawful.'

APRIL A memorandum from
Secretary of Defense Donald H. Rumsfeld to
Gen. James T. Hill outlined 24 permitted
interrogation techniques, 4 of which were considered stressful
enough to require Mr. Rumsfeld's explicit approval. Defense
Department officials say it did not refer to the legal analysis of
the month before.

DEC. 24 A letter to the
International Committee of the Red Cross over the signature of
Brig. Gen. Janis Karpinski was prepared by
military lawyers. The letter, a response to the Red Cross's
concern about conditions at Abu Ghraib, contended that isolating
some inmates at the prison for interrogation because of their
significant intelligence value was a "military necessity," and
said prisoners held as security risks could legally be treated
differently from prisoners of war or ordinary
criminals.

Other Memorandums

Some have been described in reports in The
Times and elsewhere, but their exact contents have not been
disclosed. These include a memorandum that provided advice to
interrogators to shield them from liability from the Convention
Against Torture, an international treaty and the Anti-Torture Act,
a federal law. This memorandum provided what has been described as
a script in which officials were advised that they could avoid
responsibility if they were able to plausibly contend that the
prisoner was in the custody of another government and that the
United States officials were just getting the information from the
other country's interrogation. The memorandum advised that for
this to work, the United States officials must be able to contend
that the prisoner was always in the other country's custody and
had not been transferred there. International law prohibits the
"rendition" of prisoners to countries if the possibility of
mistreatment can be anticipated.

Neil A. Lewis contributed to this report.
Online Document Sources: Findlaw.com and National Security
Archive, George Washington University (gwu.edu)

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